Activists battle U.S. government in court over making animal welfare reports public

In 2013, a U.S. Department of Agriculture (USDA) inspector visited Thomas D. Morris, Inc., a Maryland animal breeder that sells to U.S. government and academic scientists. The inspector found numerous violations of the federal Animal Welfare Act (AWA), which sets standards for humane treatment. Fifteen unshorn sheep were penned in a sweltering building, while a group of calves and sheep had no shelter at all. A goat and a lamb were lame; another goat had an egg-sized swelling on its shoulder. In a subsequent letter, USDA warned the firm, which had 18 employees and $5 million in revenue in 2013, that future violations could result in fines or criminal prosecution.

But it’s difficult for the public to know whether the company—which supplied animals used in at least 48 biomedical studies published since 2012—has kept a clean record. That’s because, on 3 February, USDA abruptly removed inspection reports, warning letters, and other documents on nearly 8000 animal facilities that the agency regulates, including Thomas D. Morris, from public databases. Some of the documents, which are maintained by USDA’s Animal and Plant Health Inspection Service (APHIS), have since been restored. But thousands remain hidden, and animal welfare advocates are now in court trying to force USDA to restore the records, and post all new documents, too.

USDA officials said the removal was prompted by their commitment to “maintaining the privacy rights of individuals” identified in the documents, which animal rights groups, journalists, and others have regularly used to publicize the failings of AWA violators. And they say they are still reviewing the withdrawn documents, with an eye toward blacking out information that shouldn’t be public before reposting them. So far, APHIS has reposted inspection reports on most of the 983 research facilities that it regulates. But according to a 19 May analysis by the Animal Welfare Institute in Washington, D.C., it has not restored records covering 94% of the 3333 breeders and dealers that provide animals for the pet trade and, in some cases, research.

“Are huge companies [that supply research animals] like Marshall Farms, Covance, Charles River online? Yes. The rest are not because they are licensed as individuals. This has chilling ramifications,” says Eric Kleiman, who conducted the analysis for the Animal Welfare Institute.

Officials at Thomas D. Morris did not respond to repeated requests for comment.

Two different federal judges—in California and Washington, D.C.—are considering lawsuits from animal welfare groups aimed at forcing USDA to immediately repost the retracted documents. Last week, in the California case, federal district court judge William Orrick announced his “inclination” to reject a request from groups led by the Animal Legal Defense Fund of Cotati, California, to require USDA to repost the documents while the court considers the merits of the case. The department’s privacy concerns seem “real,” Orrick said. Meanwhile, a judge in Washington, D.C., is mulling a request from groups led by People for the Ethical Treatment of Animals (PETA) of Norfolk, Virginia, to force USDA to turn over internal documents to the plaintiffs as they prepare their case.

Observers say the fight highlights the growing tension between government transparency mandates and privacy worries in the internet age. Politicians who wrote decades-old federal privacy law likely hadn’t “contemplated the era of these massive, sprawling websites where agencies would routinely post enforcement information regarding not just companies, but individuals,” says Nathan Cortez, an expert on government disclosure policies at Southern Methodist University’s Dedman School of Law in Dallas, Texas.

Agencies including the Securities and Exchange Commission and the Food and Drug Administration now routinely publish information about companies and individuals who are alleged to have violated federal law. And APHIS, which is charged with enforcing the AWA and the Horse Protection Act (HPA), followed suit. In 2010, it began posting all inspection reports and enforcement records. Although the agency typically blacks out the names of individual employees, it reveals facility addresses, the names of owners, and violations, sometimes in vivid detail.

In a 2016 lawsuit against USDA, a Fort Worth, Texas, couple that owns a show horse enterprise called Contender Farms alleged that APHIS had violated their right to privacy by publishing a warning letter naming them as violators of the HPA, without first providing an opportunity to challenge the finding. The plaintiffs withdrew the suit after APHIS took down the horse records. But the case “reinforced” concerns among APHIS officials that its online document trove might “contain personal information implicating the privacy interests of individuals and closely-held businesses,” a USDA official wrote in an affidavit filed last month in the California court. Virtually all the documents that APHIS has not restored involve enterprises owned by an individual, not a company or university.

The agency said in February that those seeking the removed documents should file Freedom of Information Act (FOIA) requests to obtain them. But APHIS regularly takes months, or even years, to respond to those requests, and such delays are unacceptable to watchdog groups that “use this information all the time to get the USDA to perform its job,” says attorney Katherine Meyer of Meyer Glitzenstein & Eubanks in Washington, D.C., who is representing PETA and allied plaintiffs in the Washington, D.C., case. “An inspection report documenting something that happened 5 years ago is really not useful to my clients.”

The groups say USDA is violating 1996 FOIA provisions that require agencies to make available electronically any records that they have previously released and that are likely to be requested again. But USDA contended in a brief in the California case that its earlier en masse posting of documents was its choice and not required by FOIA.

It’s not clear when the judges will issue decisions. But they face a delicate balancing act, says Speaking of Research, a group that supports animal research. “We strongly urge the publishing of information that increases transparency about animal research,” but “we are also aware that … this transparency has been abused by animal rights extremists to target institutions and breeders,” says Tom Holder, director of the group, which is based in London and Washington, D.C. So “any information provided publicly must be considered in light of these potential risks.”